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Speaker 1: Hello, and welcome to this week's episode of The trib Cast.

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I'm Eleanor Klibanoff, joined as always by my co host

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Matthew Watkins.

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Speaker 2: Hello, welcome back, Thank you.

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Speaker 1: It's been several weeks since we've been able to do

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this together. I think last time we did together in

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the Arlington.

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Speaker 2: That's right. Yeah, and not much has happened since.

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Speaker 3: Hardly anything.

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Speaker 1: Yeah, I've been traveling and it's mostly for work though,

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But it's crazy to step away from your phone for

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like three hours to do an interview or something and

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you come back and you're.

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Speaker 4: Like, oh god, I I'm sure you listened to the

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podcast you were on and so but I'll allow me

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to extend my apologies in person for Jasper and I

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making fun of you for predicting special Session this year.

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Speaker 1: Yes, yeah, that's I was wanted to come back and

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do like a I wanted to be part of it

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and uh way in. But maybe we'll have him back

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on and we can uh you know, make him suffer

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for absolutely through the special Session.

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Speaker 3: Well, we are going to jump in.

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Speaker 1: I as I told Matthew before it got started, We're

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going to talk with our guests for a little bit

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and then I do have a fun trivia fact that

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I think I can maybe stump Matthew with at the end.

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So stick around after our conversation if you want to

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hear that. But you know, a lot, as you said,

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a lot to talk about, So we'll go ahead and

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jump right in. We are joined by a very special

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guest all the way from Washington, d C. Georgetown law

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professor Steve Laddock.

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Speaker 3: Thanks for joining.

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Speaker 5: Us, Thanks, Elinor nothing great to be with you.

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Speaker 1: And many of you probably know him as former UT

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law professor Steve Laddock.

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Speaker 2: Yeah, he's a reformed longhorn.

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Speaker 1: Yes, yeah, yeah, to get to d C, to escape it.

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Speaker 5: I mean, I'll just say that that the Georgetown athletics

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don't quite have the same vibe and energy and excitement

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as the Texas athletics.

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Speaker 4: I could believe that they've at times had a good

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basketball team.

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Speaker 5: You know, it's been a minute. I mean, you know,

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I knew we were in trouble when they asked me

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if I still had any eligibility left.

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Speaker 1: Yeah. I went to the other DC university, not American,

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the other DC university, George Washington, which doesn't even have

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a football team. So, as they say, got to Texas

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as fast as I could.

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Speaker 4: You know, sometimes I wish my school didn't have football team.

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Speaker 1: We've asked another texts Pat DC resident this question, Steve,

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what do you miss most about Texas? Man?

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Speaker 5: I think probably some combination of breakfast, tacos and the

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winter weather compared to what we get in the Northeast.

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Speaker 4: That's fair enough wrong answer. If you had said HB,

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they might have Ain't you a goodie basket?

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Speaker 3: Patrick's text at AGB and they said.

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Speaker 5: I mean, my family complains about not having AGB all

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the time. My girl, we've been on a quest to

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find a local ice cream store that has cookies over Texas.

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Speaker 3: Some variation thereof someone tells me you're not finding that.

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Speaker 5: Listening and you want to send some cookies over to Washington.

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Let me know.

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Speaker 1: Yeah, we'll have your kids on next and we'll get

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them to do this for us.

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Speaker 5: They're much ertatum.

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Speaker 1: Yeah, well, you know, we invite you on to talk

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about the exciting end to a exciting Supreme Court term.

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Speaker 3: As usual.

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Speaker 1: They got us out of here before the fourth of

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July and got themselves onto their summer vacations. May you

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tell us a little bit just to start, Like what

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your big takeaways are from this Supreme Court term?

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Speaker 3: That sort of the headlines for you, sure.

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Speaker 5: I mean I think in one sense, I mean, yes,

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the court is off for at summer recess eleanor. But

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one of the big headlines to me actually is that

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the term is really not over because you know, at

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least formally it goes to October. Usually no one cares,

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but the Court has been so inundated with emergency applications,

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with cases that have reached the court, you know, out

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of the normal flow of boring technical appellate processes, including

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nineteen already from the Trump administration, and those have been

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some pretty big cases, whether it's you know, birthright citizenship

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or you know, alien enemies removals or mass firings of

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federal employees, and so, you know, to me, the real

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sort of top line takeaway is that this term has

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already been dominated not by the sort of traditional big

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ticket cases that we're used to talking about, but by

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all these late breaking emergency applications in the mind run

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of which the majority of the Court has cided at

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least temporarily with President Trump.

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Speaker 1: Is there if anyone wants to, like, read a book

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about this process of things happening off off the main docket,

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would where would you point them?

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Speaker 5: I mean, so, I will say the part of why

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I wrote this book called the Shadow Docket a couple

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of years ago is because I had thought already that

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this was becoming an increasingly important part of the Supreme

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Court's work. You know, I think this term proved that

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in spades, and it's important in a couple of respects.

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It's important because we're not used to thinking about the

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Supreme Court as a twenty four seven, three hundred and

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sixty five operation. It's important because when the Court rules

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on these emergency applications, it's rare for the Court to

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actually explain what it's doing, let alone to do so

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in any detail. And so you get these cryptic orders

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that folks look at online and say, well, wait a second,

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where's the opinion? There Usually isn't one. But also I

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think eleanor it's rare to see them in this volume.

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I mean, you know, not that long ago, we were

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seeing maybe a couple of these high profile emergency applications

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a year, and many of those were in capital cases,

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so you know, individual death cases that were very important

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of course to the death row. Prisoner, to the state,

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to the victims, but maybe not nationally important from a

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policy perspective. You know, now we're seeing one of these

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a week, and I think that's problematic wholly apart from

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the results that the Supreme Courts reached it in those orders,

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because you have the Supreme Court issuing massively important decisions

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and doing very very little to explain why, and putting

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policies into effect without explaining whether or not they're even legal.

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And so you know, that really is a fundamental shift

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in what the Supreme Court's doing in ways that at

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least to this point, have favored the Trump administration without

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actually upholding almost any of its policies.

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Speaker 1: Right, Yeah, interesting, it does feel like I mean, when

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you look at even the cases that sort of came

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out at the end of term, like the high profile cases,

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like some of them moved through the normal, like years

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long process to get to the Supreme Court, but some

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of them are things that you know, have really only

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popped up since since January, That's.

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Speaker 5: Right, And so you know, I think it really is

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the tale of two terms. And I apologize to Charles

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Dickens for for for that reference, but it's a tale

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of two terms in the sense that you do have

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like this you know regular docket, which has some big

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cases on it, I mean scurmetti about you know, upholding

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Tennessee's ban on gender affirming medical care for transgender adolescents.

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You have you know, the mo Mood case about whether

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parents can opt their children out of having to read

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books in public schools that have LGBTQ plus thematic elements

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in them. I mean, those are massively important decisions. You

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have a bunch of cases where the court reversed the

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Fifth Circuit, the Federal Appeals Court for you know, Texas, Louisiana,

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Mississippi on issues that could have been huge if the

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court had affirms so for example, you know the non

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delegation doctrine vis a vis something called the Universal Service Fund,

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which a lot of folks don't know about, but it's

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actually a massive pool of money. That's how a lot

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of folks in America, including in Texas, have access to

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the Internet. And so those were big cases by any metric.

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But given the sort of contrast between those cases and

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what really feel like fundamental rule of law cases about

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you know, whether migrants have a right to do process

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before their designated alien enemies and removed from the country.

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About whether you know, the president can unilaterally change what

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it means to be entitled to birthright citizenship. I guess

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you know, Eleanor That's why it feels unusual as we

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sit here when the court has finished up what we

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might call the sort of regular part of its work,

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but the Trump rule of law stuff is ever ongoing.

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Speaker 4: Can we talk about this birthright citizenship case because I

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think this, Do we have to?

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Speaker 3: Yeah? It's hardly I mean, I don't. I don't get

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the sense it's gonna be a huge deal.

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Speaker 4: Right, yeah, yeah, yeah, yeah, you know, first and foremost,

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can you just explain to us what the court decided

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in what it didn't decide in this in this real.

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Speaker 5: Yeah, I mean, so the first thing to say is

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it didn't decide anything about whether the president's executive order

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purporting to limit birthright citizenship is legal or not. And

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so you know, there was nothing on that. The whole

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fight in that case is about something called a universal

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or a nationwide injunction. And to do the sort of

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thirty second Oh my gosh, I'm really happy I didn't

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go to law school version. The typical injunction says, hey, defendant,

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you can't do this thing to that person, and it's

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specific about who the defendant is prescribed from acting against.

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What makes a nationwide injunction different is that it's not

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that specific. It just says, hey, defendant, you have to

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stop doing the same period. And so it's not that

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it's nationwide, it's that it's not planef specific. But no

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one really wants to use that term. What the Supreme

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Court said in the birthright Citizenship cases is that in general,

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federal court should not be issuing those kinds of injunctions,

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that in most cases federal court should be issuing injunctions

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only that benefit the planiffs. And so if that was it,

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if that was the end of the story, that would

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be a massive kneecapping of the power lower federal courts

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to basically stop nationwide federal policies. Right, you'd have to

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have hundreds of thousands of lawsuits. Every single undocumented immigrant

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who's going to have a child would have to sue

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themselves to challenge the Birthright Citizenship Executive Order. What is

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messy about last Friday's ruling in the birthright Citizenship case

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is that the Court hasn't closed the door to other

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ways that plaintiffs, both in these cases and in other cases,

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could still try to get some kind of broader nationwide relief.

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They could try something called a nationwide class action, where

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a handful of plaintiffs represents everyone in the country who

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is like them, and then in order that benefits them,

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ends up benefiting everybody. Or even Justice Barratt's majority opinion,

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in which she said we're getting rid of universal injunctions,

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had a caveat unless she says, you have to provide

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nationwide relief to give the plaintiff everything that they're asking for.

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And so, you know what's really frustrating guys to me

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about this case is it's a huge deal analytically because

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of how it curtails the power of lower federal courts.

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How big a deal it is practically really depends on

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what happens next as opposed to anything that the Court

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actually did or said on Friday.

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Speaker 4: This These nationwide injunctions have been a headache for administrations

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of both parties. You have written and talked about in

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the past about you know, our Texas District Judge Matthew

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has Merrick, who has been known to issue a lot

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of those or was known and.

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Speaker 1: Judge read O'Connor and Judge Wesley Hendrix and judge like Texas.

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I don't know that Texas actually came up with this idea,

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but Texas certainly has used this nationwide injunction trick.

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Speaker 2: A lot, exactly exactly, and so.

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Speaker 4: And you know, the idea of the frustration was, you know, one,

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you know, to use a term of the right activist

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judge could essentially, you know, play decider for the fate

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of a law for the entire country. And that has

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been frustrating to some people. I mean, I guess what

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you're sort of saying here is that it's too soon

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to know how much that practice has been curtailed. It

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kind of depends on how this order is interpreted and

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taken from here.

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Speaker 5: That's right. I mean, so, you know, nothing stops the

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same judges who were the focal point for so much

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of this judge shopping from certifying a nationwide class action,

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which is technically a different procedural device, but which would

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produce the same outcome, which is to say, a federal

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policy is blocked on a nationwide basis, or even from

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using the caveat in justice Barrett's opinion and saying, oh, well,

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here's one of those rare cases where I have to

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provide universal relief. Matthew. What's frustrating to me is that

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I think folks have conflated criticisms of nationwide injunctions with

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the kind of abusive forum shopping and judge shopping that

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you know you just mentioned that, you know, you could

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fix that problem without getting rid of the power of

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district courts inappropriate cases to actually stop lawlessness by the

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executive branch. And I think part of why, folks, part

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of why you've seen such a I think bipolar reaction

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to Friday's ruling is because for folks who look at

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the current president and see lawlessness everywhere, it looks like

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a Supreme Court that is basically, you know, pulling the

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rugout from under the ability of lower federal courts to

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slow that down. And for folks who look at the

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current president and see, you know, very see what they've

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you know, quote what we voted for unquote, and things

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that don't bother them, you know, this looks like it's

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almost hypocrisy on the part of folks who criticize these

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kinds of injunctions. During the Biden administration. So, you know,

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I think the problem is that the answer is somewhere

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in the middle, that you know, district courts had been

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doing this too often, but that that was exacerbated by

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things having nothing to do with nationwide injunctions and everything

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to do with the fact that you can bring a

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lawsuit in Amarillo that had no relationship to Amarillo and

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be guaranteed to draw someone like Judge Chasmeric and so

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I guess, you know, part of what's tricky about this

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case is that there are you know, decent, substantive arguments

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against nationwide injunctions as a pure, boring, formalistic legal matter.

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What is exasperating is that the Supreme Court took this

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moment at this you know, in this concept and frankly

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in these cases, to you know, hand on that mandate

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to draw that line in.

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Speaker 3: The sand, right.

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Speaker 1: I mean, it is interesting, I mean, and I think

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this is something like Justice Corsich has been very outspoken about,

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like the nationwide injunction is a relatively new thing, Like

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we basically didn't have them for a long time, or

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judges weren't weren't issuing them, and then suddenly this has

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become a thing that really has taken off, and like,

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what do you see as you know the reality if like,

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let's say this sort of does end up playing out

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and is curtailed. What looks different a year from now,

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two years from now by the time you know this

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sort of is inacted.

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Speaker 5: I mean, so I think the problem is, right, take

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a president who probably gets a new executive order that

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we all agree is unlawful. Right, how are we going

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to establish its unlawfulness in a way that prevents it

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from harming people? And so the virtue, I mean, there

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are cost a nationwide junctions, but the simple virtue of

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the nationwide injunction was it was an express train to

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blocking unlawful federal policies in the world you're describing eleanor

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we're doing everything retail, not wholesale. And that means you're

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gonna need a lot more lawsuits. It means those folks

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who don't have the resources to bring lawsuits might actually

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be harmed even by a policy that we all think

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is unlawful. It puts more pressure on federal courts to

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actually entertain more and more of these cases as opposed

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to a small handful of them. And so you know,

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the guys, the right answer is probably somewhere in the middle,

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where you know, certain kinds of claims really should be

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able to produce nationwide relief and certain ones shouldn't be.

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The problem is that I think those kinds of policy

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calibrations are ones that the Supreme Court is especially ill

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suited to do on its own. And if we had

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a functioning legislature, you know, that could actually resolve these

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kinds of policy debates, we might be able to find

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an answer that Democrats and Republicans could both agree to

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versus the sort of unilateral disarmament that we're seeing right now.

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I'll say, just really quickly, I mean, I'm cautiously optimistic

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that instead, what's going to happen is we're going to

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see a resurgence of class actions, and we're going to

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see a resurgence of you know, a handful of especially

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sympathetic plaintiffs bringing a lawsuit in which they claim to

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represent everyone who's harmed by a nationwide policy, and district

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courts letting those cases go forward. But you know, if

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that's what happens, guys, it's the same problem because which

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district courts are the class actions filed in right, You're

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going to have one district judge in one part of

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the country who is yet again right, at least as

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a temporary matter, being tasked with providing a nationwide relief

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on a federal policy. You don't make that problem go

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away just by making the nationwide injunctions go away.

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Speaker 4: Are the stakes for this different in Texas than they

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are in other places? In part because of what we

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just described some of the judges that we have here,

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but also because we have an attorney general right who

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sides with the Trump administration right. Like you can see,

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you know, a lot of these nationwide injunctions are in

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cases where our attorney general would be less likely to

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be bringing a case against the federal government than say,

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in California.

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Speaker 5: Yeah, I mean, I think the short answer is yes,

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it was already true, of course that you know, Texas

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assumed the Biden the sorry, the Trump administration a lot

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less than to the Biden administration. You know, so far,

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the only lawsuits we see between Texas and the Trump

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administration are the collusive ones where the federal government sues

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Texas and Texas immediately settles. But I I guess, Matthew,

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my reaction is that The real question is, by the

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time there's another democratic president, has some procedural device emerged

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that is playing the same role as the nationwide injunction,

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be it a nationwide class action or something else. If so,

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then I don't doubt that you know, whoever the Texas

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Attorney general is then will be just as aggressive in

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trying to utilize those devices. If not, then yeah, I mean,

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you know, then maybe we actually do see a return

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to the pre twenty twelve, twenty thirteen you know world

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where every time a president of either party does something significant,

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it's not immediately challenged in court by an attorney general

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from a state of the other party.

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Speaker 4: I know, eleanor you probably want to move on, But

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just one last question on this subject.

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Speaker 1: Kidding me, judge shopping nationwide injunctions?

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Speaker 3: I love this stuff.

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Speaker 4: What about the issue the issue of birthright citizenship? I

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mean that I know the court and you know, put

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a thirty day pause on this, you know, going back

359
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what happens next in this case, in what you would

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be watching in terms of the future of that, particularly

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in Texas again, because of the situation we have here

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with our journey general.

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Speaker 5: So I mean, the short answer is I think it's

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incredibly likely. I mean, like, you know, north of eighty

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to eighty five percent that before that thirty day period

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runs out, there's yet another ruling by a district judge

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somewhere that has nationwide effect. And there are two ways

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that could happen. You could have certification of a nationwide

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class of planiffs, or you could have a case where

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the Court says, even under Justice Barrett's reasoning, this is

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the rare example of a case where nationwide relief is

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necessary to give the PLANEFF everything they need. Probably not, Matthew,

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a case where you have an individual PLANEFF, but like

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New Jersey, for example, has really good arguments about why

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a New Jersey specific injunction would actually cause real harm

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if states like Texas were not bound by it, right,

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if you could still have people born in Texas and

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not be citizens under the executive order. So, Matthew, my

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best guess is that the policy still never goes into effect.

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But you know that's going to depend not just on

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a district court somewhere following one of these two pathways

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that the Supreme Court decision has left available to go

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back to where we started, Guys, it's going to depend

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upon the Supreme Court then letting the district court do that. Right,

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it's going to depend upon the Supreme Court denying the

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inevitable emergency application that the Trump administration will file when

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a district court issues that relief. And so you know,

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we're going to be talking by the end of the

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summer about the second round of birthright citizenship cases. And

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this goes back to why I think this is a

391
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very unusual term in that the summer could end up

392
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being just as busy right as the spring and the fall,

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because it's not just birth right slazenship. They're going to

394
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be any number of disputes where that's going to be

395
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the fight over the next eight weeks.

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Speaker 1: Wow. Yeah, I mean certainly not like playing out maybe

397
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as the original dividers of our powers imagined all of.

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Speaker 3: This would go.

399
00:21:00,880 --> 00:21:02,359
Speaker 1: I do want to talk about some of the like,

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like you said, the more substantive cases that came up.

401
00:21:05,000 --> 00:21:08,359
You mentioned Scrimmetti, my Mood and we here obviously had

402
00:21:08,400 --> 00:21:09,480
a free speech alliance.

403
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Speaker 3: Vee Paxton.

404
00:21:10,960 --> 00:21:14,200
Speaker 1: What stands out to you about sort of the Court's

405
00:21:14,400 --> 00:21:17,480
rulings on these on these cases that are all around

406
00:21:17,480 --> 00:21:20,400
sort of similar ideas and similar topics.

407
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Speaker 5: I mean, I think there's one theme that actually cuts

408
00:21:23,720 --> 00:21:27,759
across all of those cases, and the theme is reducing

409
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the degree of scrutiny that we're applying to the underlying

410
00:21:31,720 --> 00:21:36,079
state laws. So you know, in I mean, I guess

411
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my mood's probably the sort of the tricky one here.

412
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But if you take the free speech Coalition case, and

413
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if you take Scrimeti, in both of those cases, eleanor

414
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a lot of the fight between the majority and the descent,

415
00:21:46,880 --> 00:21:49,200
and in both of those cases it's six to three, right,

416
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A lot of the fight between the majority of the

417
00:21:51,440 --> 00:21:55,039
descent is what standard of review applies. What that means,

418
00:21:55,119 --> 00:21:58,519
right in English, is how skeptical should we be of

419
00:21:58,640 --> 00:22:01,400
why the government is due and what they're doing. How

420
00:22:01,839 --> 00:22:04,559
heavy a burden does the government have to meet to

421
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justify what it's doing. And you know, in Scurmeti, by

422
00:22:08,839 --> 00:22:12,680
saying that, you know, singling out people of transgender status

423
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doesn't require heightened treatment. In this context, the Court was

424
00:22:17,240 --> 00:22:20,480
able to uphold Tennessee's regulation, even though it certainly appears

425
00:22:20,519 --> 00:22:23,880
to be motivated at least in part right by animis

426
00:22:23,920 --> 00:22:26,279
against transgender individuals in a way in which if we

427
00:22:26,319 --> 00:22:29,480
applied heightened scrutiny that would kill it, and the free

428
00:22:29,480 --> 00:22:31,880
speech coalition in case is another great example of this right.

429
00:22:31,920 --> 00:22:35,559
The type of restriction in the Texas law, the age

430
00:22:35,640 --> 00:22:40,079
verification requirements for visiting websites with you know, sensitive adult content,

431
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in almost any other era, would have triggered what's called

432
00:22:44,480 --> 00:22:47,559
strict scrutiny, meaning Texas would have had to prove that

433
00:22:47,599 --> 00:22:52,039
there was no less restrictive way of keeping minors away

434
00:22:52,119 --> 00:22:56,839
from you know, websites with porn. Because the majority says no,

435
00:22:56,880 --> 00:23:00,440
this only gets what we call intermediate scrutiny. Texts actually

436
00:23:00,440 --> 00:23:02,839
has allowed a lot more wiggle room, And so you know,

437
00:23:02,920 --> 00:23:05,279
I see what I see in both of those cases

438
00:23:05,559 --> 00:23:10,000
is the Supreme Court basically softening the tests in a

439
00:23:10,039 --> 00:23:14,039
way that gives the justices more wiggle room and more

440
00:23:14,119 --> 00:23:16,880
discretion to sort of pick and choose which of these

441
00:23:16,960 --> 00:23:19,359
laws they like and which ones they don't. Whereas if

442
00:23:19,400 --> 00:23:21,759
you had the most rigid form of scrutiny eleanor there'd

443
00:23:21,759 --> 00:23:23,720
be no wiggle room. Right, it would be almost an

444
00:23:23,759 --> 00:23:27,200
objective inquiry into whether there was any narrower way for

445
00:23:27,240 --> 00:23:28,279
the state to do what it did.

446
00:23:29,400 --> 00:23:33,160
Speaker 1: Interesting, Yeah, yeah, we maybe talked about this here before,

447
00:23:33,200 --> 00:23:35,720
but I wrote with my colleague Kayla our story about

448
00:23:35,759 --> 00:23:40,799
the pre Speech Coalition, the lawsuit involving you know what

449
00:23:40,920 --> 00:23:42,880
is often referred to sort of the porn Hub case,

450
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and I really want to make sure that I had

451
00:23:46,039 --> 00:23:48,599
my byline on it. Kayla like wrote a day of

452
00:23:48,759 --> 00:23:52,160
because stories we do that have the word porn hub

453
00:23:52,240 --> 00:23:55,039
in the headline do better than any other story on

454
00:23:55,079 --> 00:23:55,759
our website.

455
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Speaker 3: It is just like page view bonanza.

456
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Speaker 5: It's not great, but I I mean, that's you know,

457
00:24:01,480 --> 00:24:04,519
but at the risk of turning that into a substitute

458
00:24:04,559 --> 00:24:09,400
point though, I mean, I think it's also lawyers, no,

459
00:24:09,480 --> 00:24:12,119
but Eldor. But this is the problem, right, which is

460
00:24:13,920 --> 00:24:18,480
it is really hard in this space to regulate websites

461
00:24:18,839 --> 00:24:21,880
in a way that's not massively overbroad. And you know,

462
00:24:22,119 --> 00:24:25,559
historically over breadth is a huge concern for First Amendment purposes.

463
00:24:25,599 --> 00:24:28,759
We don't want states, even if they have the most

464
00:24:28,799 --> 00:24:33,119
like absolutely compelling interests, we don't want them chilling speeches

465
00:24:33,160 --> 00:24:37,759
otherwise constantly protected. We don't want you know, adults who

466
00:24:37,799 --> 00:24:40,039
wish to remain anonymous, who don't want to share this

467
00:24:40,079 --> 00:24:43,240
information with the state, you know, to have to sort

468
00:24:43,240 --> 00:24:46,480
of see their speech rights chilled unless there's no other

469
00:24:46,519 --> 00:24:48,519
way to do this, and so eleanor you know, it's

470
00:24:48,599 --> 00:24:51,720
it's the sort of it's the visibility of these kinds

471
00:24:51,759 --> 00:24:54,799
of websites that make this actually, I think, less of

472
00:24:54,839 --> 00:24:56,960
a difficult First Amendment case than it should have been.

473
00:24:57,400 --> 00:25:00,400
And part of why the majority opinion relate accident on

474
00:25:00,400 --> 00:25:02,599
the standard of scrutiny is to be so problematic. Right,

475
00:25:02,640 --> 00:25:05,680
It's like, no one thinks kids should have access to

476
00:25:05,720 --> 00:25:09,000
porn websites. The issue is how much should adults be

477
00:25:09,039 --> 00:25:14,359
the collateral damage when states are trying to implement that policy.

478
00:25:14,440 --> 00:25:18,079
Speaker 4: If I remember from reading your article correctly, the minority

479
00:25:18,079 --> 00:25:22,279
in this case seem to suggest that had this issue

480
00:25:22,279 --> 00:25:26,640
been held up to strict scrutiny, Texas may still have prevailed.

481
00:25:26,839 --> 00:25:32,720
I mean, it does seem like, you know, the there

482
00:25:32,759 --> 00:25:34,920
are not a lot of other great ways to prevent

483
00:25:35,000 --> 00:25:38,160
kids from looking at porn. And I'm just curious, like

484
00:25:38,200 --> 00:25:42,640
what you think about you know, had they reviewed the

485
00:25:42,640 --> 00:25:44,960
case in the way that you feel they should have,

486
00:25:45,079 --> 00:25:47,200
do you think they would have come to a different outcome.

487
00:25:48,319 --> 00:25:50,799
Speaker 5: I mean, so the whole case would have been litigated differently,

488
00:25:50,839 --> 00:25:52,599
It would have been discussed differently, right, because Matthew, then

489
00:25:52,640 --> 00:25:56,960
the question would have been can Texas, you know, can

490
00:25:57,160 --> 00:26:01,000
sort of Texas or can the challengers I identify any

491
00:26:01,119 --> 00:26:04,160
other way that would have been less restrictive to reach

492
00:26:04,240 --> 00:26:07,160
the same goal. And if the answer was no, then yeah,

493
00:26:07,160 --> 00:26:09,359
it would have survived struck scrutiny and it would have

494
00:26:09,359 --> 00:26:11,960
been upheld. And so that's my concern. My concern is

495
00:26:12,000 --> 00:26:15,079
not that the Supreme Court upheld Texas's age verification law.

496
00:26:15,920 --> 00:26:18,400
The concern is how much violence are you doing to

497
00:26:18,440 --> 00:26:21,000
the doctrine in ways that are going to affect plenty

498
00:26:21,000 --> 00:26:23,319
of other cases. And the reason why this matters, I mean, guys,

499
00:26:23,400 --> 00:26:26,400
the Supreme Court's deciding you know, fifty five of these

500
00:26:26,440 --> 00:26:28,680
cases a year, but the lower federal courts are deciding

501
00:26:28,680 --> 00:26:31,400
one hundreds and thousands of them. And so, you know,

502
00:26:31,519 --> 00:26:34,599
I get nervous when, even in the context of a

503
00:26:34,680 --> 00:26:38,799
compelling fact pattern, the Supreme Court waters down the standard

504
00:26:38,839 --> 00:26:42,200
of scrutiny because it means that in other contexts where

505
00:26:42,240 --> 00:26:43,920
maybe we're not all on the same side of this

506
00:26:44,000 --> 00:26:49,119
as the state, right, it gives the state room to

507
00:26:49,200 --> 00:26:51,799
do things that I think are potentially quite nefarious.

508
00:26:52,119 --> 00:26:54,279
Speaker 1: Well, and that's like what these websites argue, right, is

509
00:26:54,319 --> 00:26:57,960
that like adult websites, pornography websites are like the canary

510
00:26:57,960 --> 00:27:01,039
and the coal mine for whiling away at free speech,

511
00:27:01,039 --> 00:27:02,559
and so you know, like they're kind of easy to

512
00:27:02,559 --> 00:27:05,680
go after. But it may be and I mean Texas's

513
00:27:05,720 --> 00:27:09,119
law sort of talks generally about like adult content. You know,

514
00:27:09,160 --> 00:27:11,839
there has been like talk certainly from I've heard this

515
00:27:11,839 --> 00:27:15,119
from like LGBTQ advocates who say, like what prevents the

516
00:27:15,119 --> 00:27:18,160
state from saying, you know, well, kids can't transition, you know,

517
00:27:18,200 --> 00:27:21,079
why that's adult content to even show them information about

518
00:27:21,079 --> 00:27:23,759
gender transition or things like that, so.

519
00:27:24,160 --> 00:27:26,880
Speaker 5: Or even or even things about like sam Set's weddings, right,

520
00:27:26,920 --> 00:27:28,880
I mean, like you know, is that is that is

521
00:27:28,920 --> 00:27:31,839
that adult content because it's about topics that are too

522
00:27:31,880 --> 00:27:35,640
sensitive for minors. I mean, you know, I think we're

523
00:27:35,640 --> 00:27:37,759
not there yet, Eleanor. But like, the problem is is

524
00:27:37,799 --> 00:27:40,559
that once the Supreme Court mixed this kind of significant

525
00:27:40,599 --> 00:27:44,240
doctrinal step, it provides the foundation for the next step

526
00:27:44,240 --> 00:27:46,680
and the step after that. And so my concern about

527
00:27:46,839 --> 00:27:50,200
most of the big cases on the normal side of

528
00:27:50,200 --> 00:27:52,880
the Supreme Court's dock at this term is that ten

529
00:27:53,000 --> 00:27:54,759
fifteen years from now, we're going to look back on

530
00:27:54,799 --> 00:27:58,119
them as the sort of early steps of bigger and

531
00:27:58,240 --> 00:28:00,640
more troubling shifts in all of the doctrines.

532
00:28:01,519 --> 00:28:02,680
Speaker 3: Well, that is sort of my question.

533
00:28:02,720 --> 00:28:04,799
Speaker 1: I mean, to sort of wrap it up, is like,

534
00:28:04,960 --> 00:28:07,640
you know, this is year one of the Trump administration, right,

535
00:28:07,680 --> 00:28:10,559
I mean, if we can believe it, we've got three more.

536
00:28:11,240 --> 00:28:12,960
Speaker 3: You know, what does what do you think?

537
00:28:13,839 --> 00:28:15,319
Speaker 1: You know? It looks like by the end of the

538
00:28:15,359 --> 00:28:17,160
Trump admistrative we sort of stay on this path.

539
00:28:18,880 --> 00:28:22,440
Speaker 5: I don't know, and I think, you know, anyone who

540
00:28:22,440 --> 00:28:26,240
says they know, I think is selling something. What's really

541
00:28:26,279 --> 00:28:29,720
striking about the Trump cases of the last I don't

542
00:28:29,759 --> 00:28:34,240
know five six months, is in only one of them

543
00:28:34,720 --> 00:28:38,200
did the Court say anything positive on the merits in

544
00:28:38,240 --> 00:28:40,680
favor of what President Trump wanted to do. Only when

545
00:28:40,720 --> 00:28:44,400
President Trump fired members of the National Labor Relations Board

546
00:28:44,440 --> 00:28:47,200
and the Merit System's Protection Board. Only on that emergency

547
00:28:47,200 --> 00:28:50,880
application do we see any sign from the Supreme Court

548
00:28:50,960 --> 00:28:53,279
that they're likely to agree with Trump on the merits.

549
00:28:53,680 --> 00:28:56,799
Almost every other case right, either is on procedural grounds

550
00:28:56,839 --> 00:28:59,920
or the Court said nothing. So Eleanorn, I'm really interested

551
00:28:59,920 --> 00:29:03,039
in what we might call the second generation Trump cases.

552
00:29:03,119 --> 00:29:05,920
When these cases start getting to the Supreme Court on

553
00:29:06,000 --> 00:29:08,440
the merits, when the question is are all of these

554
00:29:08,440 --> 00:29:11,440
policies legal as opposed to you know, are you the

555
00:29:11,519 --> 00:29:14,319
right plaintiff? Did you sue in the right court? Are

556
00:29:14,319 --> 00:29:17,559
you entitled to an emergency stay? What do we see

557
00:29:17,559 --> 00:29:19,920
from the Supreme Court? And you know, I think we

558
00:29:19,960 --> 00:29:22,480
saw a lot from the Court over the last couple

559
00:29:22,519 --> 00:29:26,079
of months that leads me to worry that there aren't

560
00:29:26,200 --> 00:29:29,839
five votes to push back fairly aggressively against what, to

561
00:29:29,880 --> 00:29:33,759
my view is unprecedented lawlessness from President Trump. But what's

562
00:29:33,799 --> 00:29:37,240
really striking about the you know, sort of the bill,

563
00:29:37,319 --> 00:29:39,319
the Butcher's Bill for the entire turn, is that the

564
00:29:39,319 --> 00:29:43,599
Supreme Court hasn't really committed itself on that question. It's

565
00:29:43,680 --> 00:29:46,319
just sent a whole lot of signals, many of which

566
00:29:46,319 --> 00:29:49,240
are to me concerning but not necessarily conclusive.

567
00:29:50,400 --> 00:29:54,000
Speaker 1: Interesting, so much more to watch, and not the end

568
00:29:54,079 --> 00:29:55,599
of the term in any meaningful way.

569
00:29:56,359 --> 00:29:59,240
Speaker 5: But you know, well we'll just have to do this again.

570
00:29:59,319 --> 00:30:02,200
Speaker 3: Yes, serves as a marker of some kind. Yes.

571
00:30:02,279 --> 00:30:05,119
Speaker 4: I just love how in all branches of government, all

572
00:30:05,160 --> 00:30:06,839
the times that used to be quiet are.

573
00:30:06,759 --> 00:30:07,519
Speaker 2: No longer quiet.

574
00:30:07,640 --> 00:30:12,240
Speaker 4: It really does wonders for vacations.

575
00:30:11,599 --> 00:30:15,079
Speaker 1: Shadow dockets. Yeah, it's great. Well, thank you so much

576
00:30:15,079 --> 00:30:17,680
for joining us, Professor. Like I said, we're going to

577
00:30:17,759 --> 00:30:20,440
kick you off now and now I'm gonna give Matthew

578
00:30:20,480 --> 00:30:21,720
my trivia question.

579
00:30:22,400 --> 00:30:23,079
Speaker 3: But thank you so much.

580
00:30:25,279 --> 00:30:25,480
Speaker 5: Well.

581
00:30:25,480 --> 00:30:27,000
Speaker 1: So to be clear, I don't necessarily think this will

582
00:30:27,000 --> 00:30:28,559
stump you, because I think you will.

583
00:30:28,920 --> 00:30:30,359
Speaker 3: I think maybe you've even been there.

584
00:30:30,400 --> 00:30:32,319
Speaker 1: But I'm curious how quickly you can get this, which

585
00:30:32,359 --> 00:30:35,759
is that over the weekend, I made a pilgrimage to

586
00:30:35,799 --> 00:30:39,839
an important Texas location. I was up near Wichita Falls,

587
00:30:40,960 --> 00:30:41,960
very north Texas.

588
00:30:42,079 --> 00:30:42,640
Speaker 2: Booked up.

589
00:30:43,200 --> 00:30:48,279
Speaker 3: Dang it, I really was going to do a whole No,

590
00:30:48,359 --> 00:30:49,759
that's fine. I may.

591
00:30:49,839 --> 00:30:52,720
Speaker 1: I went to Larry McMurtry's hometown in Archer City and

592
00:30:52,920 --> 00:30:55,400
his what is it is no longer booked up due

593
00:30:55,400 --> 00:30:59,039
to not some sort of legal thing. It is the

594
00:30:59,359 --> 00:31:04,160
Larry McMahon Literary Center. It was at one time four

595
00:31:04,200 --> 00:31:06,759
hundred thousand books that he collected in four bookstores across

596
00:31:06,880 --> 00:31:12,160
Archer City population like a, yeah, it was twelve hundred. Yeah,

597
00:31:12,240 --> 00:31:15,480
they chip and Joyana Gaines bought it for a while,

598
00:31:16,200 --> 00:31:18,599
sold it back to or gave it I don't know

599
00:31:18,720 --> 00:31:21,000
to what is now the Larry McMurtry Literary Center.

600
00:31:21,599 --> 00:31:22,720
Speaker 3: It was amazing. Have you been.

601
00:31:23,160 --> 00:31:27,039
Speaker 2: I have not. I really want to go. I have

602
00:31:27,319 --> 00:31:28,119
big regrets.

603
00:31:28,279 --> 00:31:35,160
Speaker 4: My friend Josh, one of my oldest friends and a

604
00:31:35,200 --> 00:31:37,799
big reader as well and a big fan of Lonesome Dove,

605
00:31:39,200 --> 00:31:41,640
we talked about going when he had the sale, you know,

606
00:31:41,680 --> 00:31:44,920
because basically when he was getting up in age, he

607
00:31:45,400 --> 00:31:47,240
sold a whole bunch of the books because he didn't

608
00:31:47,240 --> 00:31:49,880
want to leave his kids with four hundred thousand.

609
00:31:49,599 --> 00:31:52,319
Speaker 3: Books, which did not diminish it by much, honest.

610
00:31:52,640 --> 00:31:55,400
Speaker 4: Yeah, but we never made it out. It's Archer City

611
00:31:55,480 --> 00:31:56,920
is a tough place to get to, but I am

612
00:31:56,960 --> 00:31:58,279
determined to get there at some point.

613
00:31:58,519 --> 00:31:59,079
Speaker 3: Yes, it was.

614
00:32:00,079 --> 00:32:02,799
Speaker 1: They are now down to just one bookstore, and they

615
00:32:02,880 --> 00:32:05,039
someone the woman who was working there, who's like a

616
00:32:05,319 --> 00:32:07,839
you know, part of the organization now, gave me a

617
00:32:07,839 --> 00:32:08,359
little tour.

618
00:32:08,880 --> 00:32:10,440
Speaker 3: It was great. I bought several books.

619
00:32:10,559 --> 00:32:12,880
Speaker 1: I do need an advance on my paycheck how to

620
00:32:12,920 --> 00:32:14,160
get me through the rest of the month for the

621
00:32:14,200 --> 00:32:17,960
amount of money I spent on books. But she told

622
00:32:18,000 --> 00:32:19,599
me that to get the books out of booked up

623
00:32:19,640 --> 00:32:21,880
two across the Street to booked up one. They got

624
00:32:21,880 --> 00:32:24,160
the whole Archer City football team to just move them

625
00:32:24,240 --> 00:32:26,240
across the highway, which is great.

626
00:32:26,519 --> 00:32:31,640
Speaker 4: So Archer City is the basis for oh Man, now

627
00:32:31,640 --> 00:32:35,599
I'm forgetting the name of the fictional city, Talia, Texas.

628
00:32:35,720 --> 00:32:38,400
Speaker 2: And Last Picture Show? Have you read or seen last Week?

629
00:32:38,400 --> 00:32:39,640
Speaker 3: I have seen it, I have not read it.

630
00:32:39,680 --> 00:32:43,200
Speaker 4: Okay, great movie, also a great book. The football team

631
00:32:43,519 --> 00:32:48,039
in the movie is notably terrible, so maybe the carrying

632
00:32:48,079 --> 00:32:50,000
of the books that was also you know, supposed to

633
00:32:50,039 --> 00:32:52,160
be like seventy years ago, so maybe they've improved it.

634
00:32:52,359 --> 00:32:55,319
Speaker 1: Right. Yeah, I will say I bought a copy of

635
00:32:55,799 --> 00:32:57,799
Walter Benjamin at the Dairy Queen, which is his sort

636
00:32:57,799 --> 00:33:00,319
of reflections of growing up in this town. And then

637
00:33:00,359 --> 00:33:02,680
I went and ate at the Dairy Queen, which was,

638
00:33:02,839 --> 00:33:05,440
I'll be honest, the only place that was opening.

639
00:33:06,640 --> 00:33:08,640
Speaker 3: But it was great. It was a real Texas pilgrimage.

640
00:33:09,160 --> 00:33:10,359
Speaker 2: Have you read Lonesome Dove?

641
00:33:10,519 --> 00:33:10,759
Speaker 5: Yes?

642
00:33:10,920 --> 00:33:12,519
Speaker 1: So I read Lonesome Dove in high school. I would

643
00:33:12,519 --> 00:33:15,079
like to reread it, but I read in high school.

644
00:33:15,079 --> 00:33:19,480
I did not know that he wrote, oh gosha, Now,

645
00:33:19,640 --> 00:33:22,799
terms of endearment, Terms of endearment and broke Back Mountain.

646
00:33:23,160 --> 00:33:24,880
Speaker 3: Yes, I learned a lot about it there.

647
00:33:24,960 --> 00:33:28,240
Speaker 2: He wrote the movie.

648
00:33:28,319 --> 00:33:30,640
Speaker 1: Yes, the movie Broke By, but not the book that

649
00:33:30,680 --> 00:33:33,039
it was based on, right, I think that's correct. Yeah, yeah,

650
00:33:33,079 --> 00:33:35,119
but they're like really reviving at all. Only parts of

651
00:33:35,119 --> 00:33:37,440
it are open because they he left so many books

652
00:33:37,480 --> 00:33:39,200
that they have, like books in the hall and books

653
00:33:39,200 --> 00:33:42,160
on the you know, everything's falling off. It was great,

654
00:33:42,400 --> 00:33:45,240
It's really I highly recommend going out there.

655
00:33:45,960 --> 00:33:48,240
Speaker 2: I will, I'm I'm going to do it sometimes soon

656
00:33:48,279 --> 00:33:48,920
put on the list.

657
00:33:49,119 --> 00:33:49,880
Speaker 3: Yeah.

658
00:33:49,920 --> 00:33:52,680
Speaker 1: Also, I found a copy of you know, he just

659
00:33:52,759 --> 00:33:56,519
would buy books from book you know. You know, I

660
00:33:56,559 --> 00:33:58,359
don't think he hand picked each of them, which explains

661
00:33:58,359 --> 00:34:00,279
why I found a copy of Gossip Girl in the

662
00:34:00,319 --> 00:34:02,880
mass and I like to imagine that Larry mcmurtury picked

663
00:34:02,880 --> 00:34:03,680
out gossip Yeah.

664
00:34:03,680 --> 00:34:06,319
Speaker 4: Of course, you know, he was a very very versatile writer,

665
00:34:06,559 --> 00:34:08,000
so you never know, you never know.

666
00:34:08,239 --> 00:34:09,320
Speaker 2: Yeah.

667
00:34:09,360 --> 00:34:14,000
Speaker 4: My two like literary destinations are the Bookstore in Archer

668
00:34:14,079 --> 00:34:17,840
City and the Willa Cather House in Nebraska, which I

669
00:34:17,920 --> 00:34:20,840
also would really like to go to. And recently at

670
00:34:20,880 --> 00:34:24,719
a conference in New Orleans, met someone from I believe

671
00:34:24,719 --> 00:34:29,079
it's Red Cloud, Nebraska and scared everyone away at our

672
00:34:29,360 --> 00:34:33,320
happy Hour reception, repeatedly asking questions about Willa Cathers.

673
00:34:32,960 --> 00:34:34,960
Speaker 1: And they were like, I just live here, man, Yeah,

674
00:34:35,000 --> 00:34:37,440
I don't know. There's a dairy queen. Yeah, I presume.

675
00:34:37,559 --> 00:34:37,760
Speaker 3: Yes.

676
00:34:38,320 --> 00:34:41,960
Speaker 1: Well, that is our episode of the trip Caast this week.

677
00:34:42,039 --> 00:34:44,840
We appreciate you all joining us. Thank you to Steve

678
00:34:44,920 --> 00:34:47,360
Laddick for taking the time, and sounds like we will

679
00:34:47,360 --> 00:34:50,000
all be back here talking about the second term of

680
00:34:50,039 --> 00:34:53,000
the US Supreme Court coming up soon. You can get

681
00:34:53,000 --> 00:34:55,559
tripcast anywhere you get your podcast. Follow us on YouTube,

682
00:34:55,679 --> 00:34:59,920
review us, like us, subscribe, and our producers are Chris

683
00:35:00,039 --> 00:35:02,760
and Rob and we will be back next week.

684
00:35:03,599 --> 00:35:03,840
Speaker 5: Yes,